Abigail E. Jackson and Julian Sidoli del Ceno Prosecuting the Private Rented Sector: Using the Criminal Courts for Enforcement and Housing Dispute Resolution

Criminalising Landlords – A (Very) Brief History Landlords have always been subject to the general provisions of the criminal law (i.e. assault, theft etc) It was only in the 1960s in response to the activities of Perec Rachman that the Government made unlawful eviction and harassment a criminal offence Following the deregulation of the private rented sector in the 1980s, many rogue operators entered the market, letting out properties that were overcrowded and in poor condition In response, the Government introduced licensing for HMOs and designated areas in the Housing Act 2004, with criminal penalties for non-compliance

Why Should We Criminalise A Landlord’s Bad Behaviour? An increasing number of individuals are living in the private rented sector (particularly families with children) who should be protected from the bad behaviour of rogue landlords A landlord interfering with a tenant’s home can have a real effect on a tenant’s sense of wellbeing and self-esteem There is a wider appreciation and understanding of the concept of “home”: see Article 8 of the European Convention on Human Rights; Radin and Fox O’Mahony Criminalising landlords can act as a deterrent: it will encourage other landlords to act responsibly and maintain their properties

There Is A Move Towards Using the Criminal Courts for Housing Matters Guidance published by the Department for Communities and Local Government in August 2012 encouraged local authorities to prosecute rogue landlords Local authorities are prosecuting private landlords under Housing Act 2004 and the Management of Houses in Multiple Occupation (England) Regulations 2006 With these Cases: Local authorities may be able to recover monies from the landlords under the Proceeds of Crime Act 2002, even though rental income from an unlicensed property is not a benefit from the proceeds of crime – see: Sumal & Sons (Properties) v. Newham LBC [2012]

There Is A Move Towards Using the Criminal Courts for Housing Matters In December 2014, the Chartered Institute of Environmental Health published a list of all of the property companies that had been convicted of offences under Housing Act 2004 after it made a complaint to the Information Commissioner The list showed that Aspire Group Developments in Burnley had been prosecuted on five separate occasions for offences under the Housing Act 2004, while the highest fines of £23,000 and £40,000 were imposed on two companies owned by Mehmet Parlak, Watchstar Limited and Watchacre Limted Many commentators believe that this information will help local authorities tackle the problem of rogue landlords and inform any assessment of whether they are a “fit and proper person”

But Not All Criminal Cases Are Being Prosecuted…. Empirical research by Cowan et al for the Department for the Environment, Transport and the Regions in 1999/2000 indicated the number of prosecutions of landlords for unlawful eviction and harassment is low Amongst other things, the research found that: Many complaints against landlords were resolved at an early stage Prosecutions can be costly and time-consuming for local authorities Tenants may not want to give evidence at a criminal trial Sanctions are often inadequate

While Civil Lawyers Are Bringing Housing Claims in the Magistrates’ Court

The Problems Facing Housing Lawyers Shelter has: Closed 9 offices and made 100 staff redundant after the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 Had its fee-income reduced by 50% BUT THIS IS NOT ONLY HAPPENING TO SHELTER! There are “advice deserts”: there are no publicly-funded lawyers in Suffolk or the London Borough of Bexley, while 23 other areas only have one housing provider 46 providers have withdrawn or are in the process of withdrawing from the legal aid market

The Problems Facing Housing Lawyers In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPOA 2012”) removed legal aid for claims involving: Mortgage Repossessions Nuisance Benefits Tenancy Deposits NOW: Legal aid is only available where: The Client is Homeless The Client’s Home is at “Immediate Risk” The Client’s Home is in Such a State of Disrepair that their Health is being Threatened

The Problems Facing Housing Lawyers LASPOA 2012 changed the way that civil litigation was funded, making it more difficult for lower-value cases to be brought in the county courts Success fees are no longer recoverable from the Defendant The cost of ATE Insurance is no longer recoverable from the Defendant Legal fees are no longer recoverable from the Defendant in cases with a value under £10,000 (i.e. EUR 13,500) Consequently, many housing claims are no longer financially viable

Is this the End of the Story?

Tenants Are Using the Criminal Courts for Housing Matters A tenant may bring a claim against a landlord under the Environmental Protection Act 1990 if the premises are “in such a state as to be prejudicial to health or a nuisance” A tenant can apply to the Magistrates Court for an abatement order, damages and costs This can cover issues such as: Mould and dampness Poor heating Poor insulation Rodent infestations

Tenants Are Using The Criminal Courts for Housing Matters It is a SIMPLE PROCEDURE: Tenant writes to the landlord giving at least 21 days’ notice of his intention to start legal proceedings under s. 82 EPA 1990 The notice must specify the name and address of the landlord, the name and address of the tenant, as well as a description of the nuisance No requirement to provide a surveyor’s report or an indication of the remedial work that it required After the notice has expired, the information must be laid at the Magistrates Court within 6 months Magistrates Court will list this matter for trial

Tenants Are Using the Criminal Courts for Housing Matters AT THE HEARING: The landlord must plead ‘guilty’ or ‘not guilty’ The tenant must prove beyond reasonable doubt that the alleged nuisance: (i) existed at the date of the notice; and (ii) exists at the date of the hearing or is likely to recur If the landlord is found guilty, the court can make an order for damages in favour of the tenant, as well as an order requiring the landlord to abate the nuisance Damages can include compensation for personal injury: the strict rules on causation and foreseeability do not apply – it is enough for the court to be satisfied that the tenant has suffered as a result of the nuisance and that it has caused harm (see: R v. Derby (1990))

Tenants Are Using The Criminal Court for Housing Matters COSTS: The tenant will be awarded costs if the landlord is found guilty OR if the tenant can show that the alleged nuisance existed at the date of the notice If the tenant loses: they do not have to pay the landlord’s costs A tenant can fund their case against a landlord using a conditional fee agreement with an uplift (see s. 58A Courts and Legal Services Act 1990) There is no reason why a tenant cannot bring concurrent proceedings against a landlord in the civil and criminal courts

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